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Shelby County v. Holder: Why Section 2 now renders Section 5 unconstitutional

The following contribution to our Shelby County v. Holder symposium comes from Hashim Mooppan, an associate at Jones Day and one of the lead authors of an amicus brief filed in support of Shelby County on behalf of John Nix, Anthony Cuomo, and Dr. Abigail Thernstrom.  (The opinions stated herein are his own.)


The Fourteenth and Fifteenth Amendments proscribe intentional racial discrimination in voting, and Section 2 of the VRA already vigorously “enforces” those constitutional proscriptions by imposing a prophylactic nationwide ban on voting practices that are judicially determined to cause discriminatory “results.”  Accordingly, Section 5 of the VRA – which additionally imposes an extraordinary preclearance regime on all voting changes in selectively covered jurisdictions – can be justified as an appropriate “enforcement” measure only insofar as it targets potentially unconstitutional voting practices that are somehow beyond the effective reach even of Section 2’s ordinary anti-discrimination litigation.

This is common sense, but it is much more than that.  The Supreme Court consistently has relied upon this limited remedial justification for Section 5 when upholding and construing prior versions of the statute.  Indeed, the Court has strongly suggested that exceeding this narrow supplemental function would impose excessive burdens on covered jurisdictions and could require excessive consideration of race in electoral decisionmaking, thereby drawing Section 5 into conflict with the very constitutional provisions that it purports to “enforce.”

Yet, in two important ways, Congress flouted the Court’s guidance when it reauthorized and amended Section 5 in 2006.  First, and most obviously, Congress retained the old coverage formula, which does not properly target the jurisdictions where Section 2 is especially inadequate now, but rather traps the jurisdictions that were the most recalcitrant discriminators more than three decades ago.  Second, and more subtly, Congress adopted a new substantive standard, which does not properly target the narrow voting changes that used to be especially problematic to redress through Section 2, but rather confers sweeping racial preferences for minority voters.

The government refuses to grapple with either of these serious problems in defending the 2006 version of Section 5.  It ignores that Section 2 is now no less effective in the old covered jurisdictions, and it white-washes the unduly race-conscious nature of the new substantive standard.

Given that neither Congress nor the government has even attempted to follow the Court’s constitutional teaching, the Court has no choice but to exercise its constitutional duty to invalidate the current version of Section 5.  The Court’s lessons can be disregarded no longer.

The Court’s guidance before 2006

As the Court explained in South Carolina v. Katzenbach, the original 1965 version of Section 5 was upheld due to a very specific problem with the efficacy of Section 2:  in certain jurisdictions (mostly in the Jim Crow South), “case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting” because of “the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in [such] lawsuits,” including especially the “extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees.”  Thus, as the Court further explained in Miller v. Johnson, the extraordinary preclearance regime was “directed at preventing” the “particular set of invidious practices” that had thwarted ordinary antidiscrimination litigation, by “freezing election procedures in the covered areas” so that the status quo did not worsen while court cases were pending or after judicial decrees were entered.

More concretely, this narrow goal of bolstering Section 2 litigation was implemented through the tailored scope of Section 5’s original coverage formula and substantive standard.  As for the coverage formula, it was limited, as Katzenbach emphasized, to the jurisdictions that were then “most flagrant” in obstructing normal anti-discrimination litigation through “unremitting and ingenious defiance.” 

As for the substantive standard, it had, as the Court held in Georgia v. Ashcroft and Reno v. Bossier Parish (“Bossier II”), the “limited substantive goal” of “prevent[ing] nothing but backsliding” from the status quo achieved through normal anti-discrimination litigation.  In particular, the standard was limited to “retrogressive” changes:  so long as a voting change did not have the purpose or effect of making minority voters worse off, it was entitled to preclearance, regardless of whether a different change would have made them better off.  Furthermore, retrogression itself was analyzed under a “totality of circumstances” inquiry modeled on Section 2’s “results” test:  even where the change would reduce a minority group’s ability to elect its preferred candidates, the jurisdiction could prove that the reduction was justified by offsetting increases in the group’s overall political power or excused by traditional governance principles.

Thus limited, Section 5 was an appropriate supplemental enforcement scheme.  It targeted the particular voting changes in the particular jurisdictions that were most problematic to redress through Section 2. 

Notably, the Court itself repeatedly suggested that these limitations were critical to Section 5’s constitutionality.  For example, in City of Boerne v. Flores, the Court emphasized that the preclearance regime was appropriate enforcement legislation only because it had been “deemed necessary given the ineffectiveness of the existing voting rights laws” in the jurisdictions where discrimination was “most flagrant.”  Likewise, in Bossier II, the Court refused to expand the preclearance standard beyond retrogressive changes that worsen the status quo achieved through normal antidiscrimination litigation, warning that doing otherwise would “exacerbate the ‘substantial’ federalism costs that the preclearance procedure already exacts, … perhaps to the extent of raising concerns about § 5’s constitutionality.”  And in Ashcroft, the Court further refused to make a minority group’s “ability to elect” its preferred candidate the “dispositive” factor in the retrogression inquiry, in light of the constitutional concern, stressed in Justice Kennedy’s concurrence, that doing otherwise would make race the “predominant factor” in electoral decisionmaking.

Congress’s contrary approach in 2006 and thereafter

Despite the Court’s clear warnings, the 2006 Congress unmoored Section 5 from its constitutional function of bolstering Section 2.

At the most basic level, Congress’s unmodified retention of Section 5’s coverage formula is indefensible.  There is simply no rational basis for concluding that Section 2 remains inadequate in the old covered jurisdictions and only those jurisdictions.  There have been dramatic changes in the scope of race discrimination in both the covered and non-covered jurisdictions over the past three decades, and it is utterly implausible that the dividing line separating any jurisdictions where Section 2 is inadequate from the jurisdictions where it is adequate just so happens to be exactly the same.

Even more egregiously, Congress abrogated Ashcroft and Bossier II, thereby expanding Section 5’s substantive standard in order to confer racial preferences for minorities that go well beyond prophylactically banning the types of voting changes that used to be problematic to redress through Section 2.  Specifically, Section 5(b) now deems retrogressive any change that for any reason “diminish[es]” minority voters’ “ability … to elect their preferred candidates.”  This is nothing less than a rigid quota-floor protecting minorities’ expected electoral success, regardless of the circumstances.  Moreover, Section 5(c) now proscribes even a non-retrogressive change where the jurisdiction cannot convince federal authorities that it lacked “any discriminatory purpose” in rejecting an alternative change that is simply more favorable for minorities.  This difficult burden of proving a negative essentially enables the Justice Department to coerce jurisdictions into improving minorities’ expected electoral success.

Collectively, therefore, the 2006 Congress’s treatment of Section 5 reveals that its true goal was not to remedy unconstitutional discrimination, let alone unconstitutional discrimination that somehow defies redress under Section 2.  Rather, it was to provide minorities in jurisdictions with ancient histories of discrimination with an affirmative-action-like scheme to improve their future chances of electoral success, by explicitly banning voting changes that reduce their chances and by implicitly coercing changes that increase their chances.

Indeed, in 2009, the Court in Northwest Austin v. Holder strongly suggested that the 2006 version of Section 5 is constitutionally defective for these very reasons.  In particular, the Court warned that “[t]he evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”  And it further warned that the “federalism concerns” posed by the “statute’s disparate geographic coverage” were “underscored by the argument” that the substantive standard is in “tension” with the Constitution’s race-neutrality mandate because it makes race “the predominant factor” in electoral decisionmaking.

Yet, in the three-and-a-half ensuing years, Congress has not even responded to the Court’s concerns with additional legislative findings justifying the statute, let alone modified the statute to ameliorate those concerns.  

The government’s willful blindness to the 2006 defects

The government’s brief defending the 2006 version of Section 5 is an extended paean to the deference due to Congress’s conclusions about the absolute and relative amount of discrimination that still remains in the covered jurisdictions.  Yet the government never seriously engages the arguments above for why the statute is unconstitutional even assuming that everything the government says about the congressional record is accurate.

As for the coverage formula, the government does not and cannot argue that Section 2 is any less effective in the covered jurisdictions than in the non-covered jurisdictions.  Instead, the government merely emphasizes (at pages 39-41) that case-by-case litigation is generally more burdensome for minority voters than the preclearance process, because it takes time and money to bring suit.  But, of course, these general attributes of normal antidiscrimination litigation cannot justify super-imposing Section 5 on top of Section 2 any more than they would justify super-imposing federal preclearance of state employment decisions on top of Title VII.  Instead, both Congress and the Court have previously relied upon, in the words of Katzenbach, the “inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered” in the covered jurisdictions.

After all, if Section 2 is inadequate simply because it takes time and money to bring suit, then Section 5 would need to extend nationwide in order to provide effective redress for minority voters in non-covered jurisdictions. To the contrary, of course, minorities in non-covered and covered jurisdictions alike are now fully capable of bringing Section 2 suits to prevent and restrain voting discrimination, which belies the government’s exaggerated protests about the burdens of Section 2 litigation.  Ironically, this is perhaps best illustrated by the government’s own argument (at pages 50-53) that there is a greater incidence of successful Section 2 suits in the covered jurisdictions:  even if true, this just underscores that Section 5 is unconstitutional by vividly illustrating that Section 2 has become equally effective in the covered jurisdictions as in the non-covered jurisdictions.

As for the substantive amendments, the government briefly and blithely proclaims (at pages 41-47) that neither the “discriminatory purpose” standard nor the “ability to elect” standard is excessively burdensome or race-conscious.  It can take this position, however, only by ignoring the Court’s precedent and the statute’s text.

For example, the government insists (at page 45) that the “discriminatory purpose” standard must be “unobjectionable” because that is also the constitutional standard.  But the government does not even acknowledge that the Court in Bossier II previously rejected that very argument, concluding instead that the difficult burden of proving the absence of “discriminatory purpose” in the preclearance context “exacerbate[s] the ‘substantial’ federalism costs” and “rais[es] concerns about § 5’s constitutionality.”  Likewise, the government insists (at page 46) that the “ability to elect” standard is not “a guarantee of minority electoral success,” because minorities “with the ability to elect a candidate of choice” in a gerrymandered district may “fail to do so.”  But that in no way changes the fact that the amended standard does absolutely bar “diminishing” minorities’ “ability to elect,” which is a rigid quota-floor that requires preserving minorities’ expected chances of electoral success, regardless of a jurisdiction’s legitimate reasons for doing otherwise.


 The Court has given Congress and the government ample guidance and time to fix the constitutional defects with the 2006 version of Section 5.  Its teaching having been spurned, the Court should adhere to its promise in Northwest Austin “not [to] shrink from [its] duty ‘as the bulwark of a limited constitution against legislative encroachments.’”

Recommended Citation: Hashim Mooppan, Shelby County v. Holder: Why Section 2 now renders Section 5 unconstitutional, SCOTUSblog (Feb. 11, 2013, 3:54 PM),